SPECIAL    MESSAGE 


OF 


HIS  EXCELLENCY  JOSEPH  E.  BROWN, 


TO    THE     LEGISLATURE, 


UPON   THE    SUBJECTS     OF 


CONSCRIPTION,  MARTIAL  LAW,  HABEAS  CORPIS  I 


AND     THE 


IMPRESSMENT   OF   PRIVATE   PROPERTY 


BY  CONFEDERATE  OFFICERS, 


NOVEMBER  6th,    18G2 


BOUQHTON,  NISBET  &  BARNES.  State  Printkr* 

MILLEDOEVILLE,     QA. 
1862. 


I 


f 


George  Washington  Flowers 
Memorial  Collection 

DUKE  UNIVERSITY  LIBRARY 


ESTABLISHED  BY  THE 
FAMILY  OF 

COLONEL  FLOWERS 


SPECIAL    MESSAGE 


OF 


HIS  EXCELLENCY  JOSEPH  E.  BROWN, 

TO    THE     LEGISLATURE, 


UPON    TOE    SUBJECTS     OF 

CONSCRIPTION,  MARTIAL  LAW,  HABEAS  CORPUS 

AND    THE 

IMPRESSMENT   OF   PRIVATE   PROPERTY 

BY  CONFEDERATE  OFFICERS, 

NOVEMBER  6th,    18  62. 


iiK' 


<6^'^g^a'=i>rox 


BOUGHTON,   NISBET   &  BARNES,  State  Printkrs  ^ 

MILLEDOEVILLE,     GA. 


,  1862. 


Digitized  by  tine  Internet  Archive 
in  2010  witii  funding  from 
Duke  University  Libraries 


li 


• 


littp://www.archive.org/details/specialmessageofOOgeor 


TOE  FLOWERS  CCLLlCTlOJi 


SPECIAL  MESSAGE. 


Executive  Department,  i 

MiLLEDGEViLLE,  November  6th,  1862.  ) 

To  the  Senate  and 

House  of  Representatives  : 

The  great  struggle  for  liberty  and  independence  in  which 
we  have  been  engaged  during  the  past  year,  against  a  pow- 
erful and  relentless  enemy,  has  called  not  only  for  the  exer- 
cise of  the  united  energies  of  our  whole  people,  but  for  the 
most  costly  sacrifices  of  blood  and  treasure.  When  we 
look  at  the  material  of  which  the  armies  of  the  contending 
parties  are  composed,  we  can  but  exclaim,  how  unequal 
the  contest !  In  the  armies  of  the  South  are  found  tier  no- 
blest and  best  sons,  whose  valor  upon  the  battle  field  has 
been  unsurpassed,  and  w'hosc  blood  in  abundant  profusion 
has  been  poured  out,  a  rich  sacrifice  upon  the  altar  of  lib- 
erty. The  Northern  armies,  on  the  conti'ary,  have  been 
.composed,  in  a  great  degree,  of  imported  foreigners  and 
paupers,  and  of  the  worst  classes  of  Northern  society,  who 
have  served  as  mercenaries,  and  whose  destruction,  in  many 
instances,  has  been  rather  a  relief  than  a  misfortune  to  so- 
ciety. Kilt  the  contrast  does  not  stop  here.  The  motives 
which  prompt  the  people  of  the  two  sections  to  protract  the 
war,  are  as  difTercnt  as  tlie  material  of  which  the  two  ar- 
mies are  composed,  is  unlike.  The  people  of  the  North  are 
fighting  for  power  and  plunder,  the  people  of  the  South  for 
the  liberty  and  independence  of  themselves  and  their  posteri- 
ty. Our  enemies  have  it  in  their  power  to  stop  the  war  when- 
ever they  arQ  content  to  do  justice  and  let  us  alone.  We 
can  never  stop  fighting  while  they  continue  to  attempt  our 
subjugation,  but  must  prosecute  the  war  with  vigor,  if 
necessary,  to  the  expenditure  of  the  last  dollar  and  the  dt^ 
struction  of  the  last  man.  If  we  are  subjugated,  let  it  be 
only  when  we  are  exterminated.  We  were  born  free  ;  and 
though  it  be  upon  the  battle  field,  we  should  die  free. 


This  I  believe  to  be  the  unanimous  sentiment  of  the  peo- 
ple of  Georgia  who  have,  on  this  question,  laid  aside  all 
party  divisions  and  differences ;  and  have,  from  the  com- 
mencement of  the  struggle,  promptly  discharged  their 
whole  duty  to  the  cause,  and  to  their  brethren  of  the  other 
Confederate  States.  Not  a  requisition  has  been  made  upon 
Georgia  by  the  President  of  the  Confederacy  ior  assistance 
which  has  not  been  met  without  delay ;  and  in  every  case 
of  requisition  on  the  State  for  troops,,  more  men  have  been 
tendered  than  were  required. 

In  the  face  of  this  proud  record,  no  plea  of  necessity  could 
be  set  up,  so  far  as  Georgia  was  concerned,  (and  I  believe 
the  remark  will  apply  generally  to  all  the  States,)  for  the 
passage  of  any  act  by  Congress  to  raise  troops,  whigh  either 
infringed  her  constitutional  rights  or  disregarded  her  sover- 
eignty. The  Act  of  Congress  of  IGth  April  last,  usually 
known  as  the  Conscription  Act,  in  my  opinion,  does  both  ; 
and  is  not  only  a  palpable  violation  of  the  Constitution  of 
the  Confederacy,  but  a  dangerous  assault  upon  both  the 
rights  and  the  sovereignty  of  the  States.  Who  supposed, 
w^hen  we  entered  into  this  revolution  for  the  defense  of 
State  Rights  against  Federal  aggression,  that,  in  a  little  over 
one  year,  the  persons  of  the  free-born  citizens  of  the  re- 
spective States  would  be  regarded  and  claimed,  while  at 
home  in  pursuit  of  their  ordinary  avocations,  as  the  vassals 
of  the  central  power,  to  be  like  chattels,  ordered  and  dis- 
posed of  at  pleasure,  without  the  consent,  and  even  over 
the  protest  of  the  States  to  which  they  belong;  and  that 
be  who  raised  his  voice  against  such  usurpation  would  be 
denounced  by  the  minions  of  power  as  [untrue  to  the  cause 
so  dear  to  every  patriotic  Southern  heaitV  And  who  that 
has  noticed  the  workings  of  the  conscription  policy,  will 
say  that  this  picture  is  overdrawn?  Not  only  the  rights 
and  the  sovereignty  of  the  States  have*  been  disregarded, 
but  the  individual  rights  of  the  citizen  have  been  trampled 
under  foot,  and  we  have  by  this  policy  been  reduced,  for  a 
time  at  least,  to  a  state  bordering  upon  n;ilitary  despotism. 

This  extraordinary  act  has  been  defended,  huwj^ver,  by  two 
classes  of  individuals,  upon  two  distinct  ground's.  The  first 
class  admit  its  unconstitutionality,  but  justify  its  passage 
upon  the  plea  of  necessity,  and  say  tliat  without  it  the 
twelve  months  volunteers  could  not  have  been  kept  in  the 
field  in  a  time  of  great  (Emergency  ;  and  further,  that  the 
Constitution  is  a  rae-re  rope  of  sand  in  the  midst  of  nivolu- 
tion.  The  second  class  justifies  it  on  the  ground  that  Con- 
gress had  the  right  under  the  Constitution  to  pass  it.  Is^ 
either  correct? 

To  the  first,  it  may  be  replied  that  the  plea  of  necessity 
cannot  be  set  up,  till  it  can  be  shown  tjiat  the  States  when 
called  on  had  neglected  or  refused  to  fill  the  requisitions 


made  iijwn  them  for  troops  by  the  President.  Again,  in 
reference  to  the  twelve  months  troops,  it  should  be  remem- 
bered that  the  Government  only  called  on.  them  to  volun- 
teer for  that  period  before  they  left  their  homes,  and  that 
the  contract  clearly  implied  between  them  and  the  Govern- 
ment, was  that  they  should  faithfully  serve  it,  and  do  all 
their  duty  as  soldiers  for  that  period,  and  that  they  siiould 
have  all  the  rights  of  soldiers,  with  the  legal  pay  and  al- 
lowances, and  should  in  good  faith  be  discharged  and  per- 
mitted to  return  home  at  the  end  of  that  time.  The  Gov- 
ernment Cannot,  therefore,  be  justifiable  in  violating  its 
contract,  and  acting  in  bad  faith  towards,  them,  no  matter 
hovvr  great  the  emergency  niay,havc  been,  ilfiess  it  can  be 
shewn  that  the  Government,  by  thej|f'xercise  of  due  fore- 
sight and  energy,  could  not  have  supplied  their  places  in 
time  to  meet  the  emergency.  The  tact  that  they  were 
twelve  months  men  was  well  knotea'  to  the  Government 
from  the  time  they  entered  the  service.  Why  then  were 
n«t  requisitions  made  upon  the  States  for  eno(ifl;fi  of  troops 
to  fdl  their  places  a  sufficient  time  before  the'^piration  of 
their  term,  to  have  men  in  sufficient  nuui^jers  ready  for  ser- 
vice? But  admit  that  the  GovernmcnMi*d  nejjlectcd  this 
plain  duty  till  it  was  now  too  late  to  get  the  men  from  the 
States  in  time  to  meet  th^*  crisis,  and  that  it  had  on  that  ac- 
count become  necessary  for  it  to  violate  its  contract  with 
the  twelve  months  men,  to  save  thecouse  from  rnin;  was  it 
then  necessary  to  pass  a  general  Con«cription  Act  to  ac- 
complish this  purpose?  Could  it  not  have  been  done  by 
simply  passing  an  act  compelling  all  twelve  months  men, 
of  every  age,  to  remain  in  service  for  ninety  days,  fws  all  un- 
der 18  and  over  35,  though  not  conscripts,  were  compelled 
to  do?  This  would  have  g^ren  the  Government  three 
months  more  of  time  to  provide  against  the  consequences 
of  its  former  nej*<<ect,  and  raise  the  necessary  force,  and 
would  have  left  the  troops,  in  the  meantime,  under  the  com- 
mand of  the  officers  appointed  by  the  States,  as  provided  by 
the  Constitution.  The  emergency  would  thus  have  been 
met,  more  of  justice  be^n  done  even  to  the  twelve  months 
volunteers,  and  no  dangerous  precedent  at  War  with  the 
constitutional  rights  of  the  citizen  and  the  sovereignty  of 
the  States  would  have  been  established.  It  must  also  be 
recollected  while  upon  this  part  of  the  subject,  that  the 
act,  by  its  plain  letter,  deprived  the  troops  who  had  volun- 
teered for  the  war,  in  response  to  calls  made  by  the  States 
to  fill  requisitions  made  upon  them,  of  the  right  to  elect 
their  officers,  when  so  authorized  by  the  laws  of  their  re- 
spective States,  and  have  them  commissioned  by  their  State 
authorities  ;  and  that  it  established  a  system  of  promotion 
of  officers  in  violation  of  this  right  of  the  troops,  and  au- 
thorized the  President  to  issue  the  commissions.     What 


Pu''^A^^>r 


pressing  necessity  existed  to  justify  this  act  of  palpable  in- 
justice to  tlie  State  volunteers,  who  had  entered  the  Con- 
federate service  at  the  calls  of  their  respective  States  for 
the  war,  with  the  constitutional  guaranty  that  their  officers 
should  be  appointed  by  the  States,  and  with  the  further 
guaranty  from  the  States,  as  in  this  State,  that  they  should 
have  the  right  to  elect  those  who  were  to  command  them  ? 
But  it  is  said  by  the  first  class  of  advocates  of  conscription, 
tha,t  the  Constitution  must  yield  to  the  exigencies  of  the 
times,  and  that  those  in  authority  may  violate  it  when  nec- 
essary during  the  revohition  ;  if  so  it  of  course  follows  that 
those  in  authority  must  be  the  judges  of  the  necessity  for 
its  violation,  which  makes  their  will  the  supreme  law  of  the 
land.  If  this  were  t|^e  intention  of  the  people,  why  did 
they  form  a  Constitution  at  the  beginning  of  the  revolu- 
tion, and  why  did  they  require  all  our  Senators  and  Repre- 
sentatives in  Congress,  all  the  members  of  the  Legislatures 
of  the  several  States,  and  all  executive  and  judicial  officers 
of  the  Confederate  States,  and  of  the  several  States,  to  take 
an  oath  to  support  this  Constitution  ? 

When  the  Governor  of  this  State  and  each  member  of  the 
General  Assembly  took  a  solemn  oath  to  support  the  Con- 
stitution of  the  Confederate  States,  no  exception  was  made 
which  relieved  them  from  the  obligations  of  the  oath  during 
the  revolution.  This  fact  should  be  remembered  by  those 
who  admit  the  violation  of  the  Constitution,  but  severely 
censure  the  public  officer  who,  true  to  his  obligation,  throws 
himself  in  the  breach  for  the  support  of  the  Constitution 
against  the  usurpation. 

I  here  dismiss  the  first  class  of  advocates,  and  turn  to  the 
justification  set  up  by  the  second,  which  from  its  nature, 
however  unfounded,  is  entitled  to  more  respectful  consider- 
ation. Does  the  Constitution  authorize  Congress  to  pass  an 
act  such  as  the  one  now  under  consideration? 

The  advocates  of  this  power  in  Congress  rest  the  case 
upon  the  12th  paragraph  of  the  Sth  section  of  the  first  ar- 
ticle of  the  Constitution  of  the  Confederate  States,  which 
is  an  exact  copy  of  a  similar  paragraph  of  the^me  article 
and  section  ii^  the  Constitution  of  the  United  j^tes.  This 
paragraph  gives  Congress  the  f«)vver  "  to  raise  and  support 
armies."  The  advocates  of  conscription  take  this  single 
clause  of  the  Constitution  alone,  and  contend  that  it  does 
not  define  any  particular  mode  of  raising  armies,  and  that 
Congress  has  the  ^vver,  therefore,  to  raise  them  either  by 
voluntary  enlistment,  or  by  conscription  or  coercion,  as  it 
may  judge  best. 

The  Convention  which  framed  the  Constitution  of  the 
United  States,  of  which  ours  is  a  copy  so  far  as  relates  to 
this  point,  must  be  supposed  toTiave  used  terms  in  the  sense 
in  which  they  were  usually  understood  at  the  time,  in  the 


*•• 


government  which  had  lately  been  their  own,  and  from 
which  as  descendants  they  had  derived  not  only  the  terms 
used,  but  their  whole  system  of  language  and  laws,  civil 
and  military.  In  placing  a  just  construction  upon  the 
phrase  to  "  raise  armies,"  as  used  by  the  Convention,  we 
are,  therefore,  naturally  led  to  inquire  how  armi«^s  had  b^en, 
and  were  at  that  time,  raised  by  the  British  Government, 
from  which  the  members  of  the  Convention  "  had  derived 
most  of  their  ideas  upon  this  subject  "  By  reference  to  the 
legislation  and  history  of  the  British  Government,  it  will  be 
found  that  armies  were  not  then  raised  in  that  Government 
by  covscripdon,  but  only  by  voluntanj  enlistment.  This  was 
not  only  the  case  at  the  time  of  the  adoption  of  the  Federal 
Constitution,  but  had  l)ecome  the  settled  and  esta]:)lished 
practice  of  that  Government,  after  deliberate  consideration 
of  the  question  ;  which  fact  cannot  be  presumed  to  have 
been  unknown  to  the  Convention  when  they  used  the  phrase 
now  imder  consideration. 

The  terms  used  by  the  Convention  having  ^a<cquired  a 
definite  meaning  well  understood  and  recognized  by  all,  we 
cannot  justly  presume  that  the  members  of  the  Convention 
intended  that  these  terms  when  used  by  them,  should  be 
understood  in  a  different  sense.  Had  this  been  their  d<'- 
sign,  they  would  certainly  have  used  such  qualifying  lan- 
guage as  would  have  left  no  doubt  of  their  intention  to're- 
ject  the  ordinary  acceptation  of  the  terms,  and  use  them  in 
a  different  sense. 

By  reference  to  the  constitutional  history  of  Great  Brit- 
ain,  it  will  be  seen  that  a  bill  was  attempted  in  llW"  to 
"  rccrmt  the.  army  by  a  forced  conscription  nf  men  from  each 
"  parisft,  hut  mis  laid  aside  as  iwcONSTlTlfllONAL."  It  was 
tried  again  in  1707  with,  like  success;  but  it  was  resolved 
instead  to  bring  in  a  biUifor  raising  a  sufficient  numliM'  of 
troops  out  of  such  person^  as  have  no  lawful  calling  or  em- 
ployment. A  distinguished  author  says  :  "  The  parish  offi- 
"  cers  were  thus  enabled  to  press  men  for  the  lanfl  service, 
"  a  method  h'ardly  more  constitutional  than  the  former,  and 
"  liable  to  enormous  abuses."  The  act  was  temporary,  and 
was  temporarily  revived  in  17o7,  but  never  upon  any  later 
occasion.  The  Convention  of  17S7  sat  thirty  years  after 
the  British  Government  had  abandoned  the  policy  of  evii- 
srript/ov,  even  of  persons  having  no  lawful  employment,  as 
unronstitvtionnL  The  Convention  was  composed  mostly  of 
intelligent  lawyers,  who  were  well  acqthainted  with  this 
fact,  which  leaves  no  room  to  doubt  that  when  they  gave 
Congress  the  power  to  •'  raise  armies,"  they  intended  that 
the  phrase  to  "  raise  armies  "  should  be  understood  in  the 
sense  then  attached  to  it,  and  that  the  armies  should  be 
raised  by  volunteer  enlistment ;  which  was  the  only  constitu- 
tional mode  then  known  in  Great  Britain  or  this  country. 


8 

It  had  not  only  been  solemnly  determined  by  the  proper 
authorities  in  the  kingly  government  of  Great  Britain  long 
before  the  commencement  of  the  American  revolution,  that 
it  was  uncuiistltutional  to  raise  armies  by  conscrijHion,  but 
even  the  monarchical  government  of  France,  had  not  yet 
ventured  so  far  to  disregard  the  rights  of  the  subject  of  that 
Government,  as  to  adopt  this  practice,  which  places  each 
man  subject  to  it,  like  a  chattel,  at  the  will  of  him  who,  un- 
der whatever  name,  exercises  monarchical  power.  The 
practice  of  the  Government  of  the  United  States  was  also 
uniformly  against  conscription  from  its  creation  to  its  dis- 
solution. 

In  view  of  these  facts  of  history,  can  it  now  be  just  to 
charge  the  great  and  good  men  who  framed  our  republican 
government  with  the  grave  mistake  of  having  conferred 
upon  the  General  Government  of  a  Confederation  of  States 
powers  over  the.  persons  ot  the  citizens  of  the  respective 
States,  which  were  at  the  time,  regarded  too  dangerous  to 
be  exercised  by  the  most  absolute  European  monarchs  over 
their  subjects"? 

When  we  construe  all  that  is  contained  in  the  Constitu- 
tion upon  this  subject  together,  the  meaning  is  clear  be- 
yond doubt.  The  powers  delegated  by  the  States  to  Con- 
gress, are  all  it  has.  These  are  chiefly  enumerated  in  the 
8th  section  of  the  1st  article  of  the  Constitution. 

Paragraph  11,  gives  Congress  power, 

"  To  declare  war;  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures   on  land  and  water ;" 

Paragraph  12, 

"To  raise  and  support  armies  ;  but  no  appropriation  of 
"money  to  that  use  shall  be  for  a  longer  term  than  two 
"years;"  ,^.^^ 

Paragraph  13,  'ri^"*^  i^ 

"  To  provide  and  maintain  a  Navy ;" 

Paragraph  14, 

"  To  make  rules  for  the  government  and  regulation  of 
"the  land  and  naval  forces." 

If  it  were  the  intention  of  the  Convention  to  give  Con- 
gress the  power  to  "  raise  armies"  by  conscription,  these  four 
consecutive  paragraphs  gave  plenary  powers  over  the 
whole  question  of  war  and  peace,  armies  and  navies  ;  and 
it  could  not  have  been  necessary  to  add  any  other  para- 
graph to  enlarge  a  power  which  was  already  absolute  and 
complete. 

If  Congress  possessed  the  power  under  the  12th  para- 
graph above  quoted,  to  compel  every  officer  and  every  cit- 
izen of  every  State  to  enter  its  armies  at  its  pleasure,  its 
power  was  as  unlimited  over  the  'persojts  of  the  officers  and 
citizens  of  the  States,  as  the  povi^er  of  the  most  absolute 
monarch  in  Europe  ever  was  over  his  subjects  ;  and  it  was 


extreme  folly  ou  the  part  of  the  Couveutiou  to  attempt  to 
increase  this  absolute  power  by  giving  to  Congress  a  qualified 
power  over  the  militia  of  the  States,  when  its  power  over 
every  man  composing  the  militia,  was  unqualified  and 
unlimited.  That  the  Convention  was  not  guilty  of  the 
strange  absurdity  of  Laving  given  Congress  the  absolute, 
unlimited  power  now  claimed  for  it,  will  be  seen  by  refer- 
ence to  the  two  next  paragraphs,  which  give  only  limUed 
powers  over  the  militia  of  the  States. 

Paragraph  15  gives  Congress  the  power, 

"  To  provide  for  calling  forth  the  militia  to  execute  the 
"laws  of  the  Confederate  States;  suppress  insurrectious, 
"  and  repel  invasions  ;" 

Paragraph  IG, 

"  To  provide  for  organizing,  arming  and  disciplining  the 
"  militia  ;  and  for  governing  suph  part  of  th^m  as  may  be 
"  employed  in  the  service  of  the  Confederate  States,  re- 
"  serving  to  the  States  respectively,  the  appoiivtment  of 
*'  the  otiicers,  and  the  authority  of  training  the  militia 
*'  according  to  the  discipline  prescribed  by  Congress." 

Now  it  must  be  admitted  that  Congress  bad  no  need  of 
the  liiruud  power  over  the  militia  of  the  Sts^^ee,  wUich  is 
given  by  the  two  last  paragraphs,  if  it  possessed  under  the 
12th  paragraph,  the  uidim'ital.  power  to  compel  every  man 
of  whom  th(^  militia  is  composed,  to  enter  the  military 
service  of  the  Confederacy  at  any  moment  designated  by 
Congress. 

When  the  six  paiagraphs  above  quoted,  arc  construed 
together,  each  has  its  proper  place  and  its  proper  meaning  ; 
and  each  delegates  a  power  not  delegated  by  either  of  the 
others.  The  power  to  declare  war,  is  the  first  given  to 
Congress ;  then  the  power  to  raise  and  support  armies  ; 
then  the  power  to  provide  a  Navy;  then  the  power  to 
make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces.  Congress  ma}',  therefore,  make  war ; 
and  as  long  as  it  can  do  so  by  the  use  of  its  armies  raised 
by  voluntary  enlistments,  (which  was  the  meaning  of  the 
term  "to  raise  armies,"  when  inserted  in  the  Constitution,) 
and  by  the  use  of  the  navy,  it  may  prosecute  the  war 
without  calling  upon  the  States  for  assistance,  or  in  any 
way  interfering  wuth  the  militia.  But  if  it  should  become 
necessajy  for  Congress  to  employ  more  force  than  the  army 
and  the  navy  at  its  command,  in  the  execution  of  the  laws 
of  the  Confederacy,  the  suppression  of  insurrectiou,  or  the 
repulsion  of  invasion.  Congress  may  then,  under  the  au- 
thority delegated  by  paragraph  15,  provide  for  calling  forth 
the  militia  of  the  States,  for  these  purposes.  When  this 
is  done,  however,  paragraph  IG  guards  the  rights  of  the 
States,  by  reserving,  in  plain  terms,  to  the  States  respect- 
ively,   the    appointment   of  the  officers   to   command  the 


10 

militia  when  employed  in  the  service  of  the  Confederate 
Slates.  This  authority  was  regarded  by  the  Convention  of 
1787,  as  of  such  vital  importance,  that  they,  with  almost 
entire  unanimity,  voted  down  a  proposition  to  permit  the 
general  government  to  appoint  even  the  geneml  officers; 
while  the  most  ultra  federalist  in  the  Convention,  never 
seriously  contended  that  the  States  should  be  deprived  of 
the  appointment  of  the  field  and  company  oficers.  The 
Convention  doubtless  saw  the  great  value  of  this  reserva- 
tion to  the  States,  as  the  officers  who  were  to  command 
the  militia  when  in  the  service  of  the  Confederacy,  would 
not  be  dependent  upon  the  President  for  their  commissions, 
and  would  be  supposed  to  be  ready  to  maintain  with  their 
respective  commands,  if  necessary,  the  rights  of  the  States 
against  the  encroachments  of  the  Confederacy,  in  case  an 
attempt  should  be  made  by  the  latter  to  usurp  powers 
destructive  of  thd  sovereignty  of  the  former.  On  the  con- 
trary, should  the  officers  to  command  the  militia  of  the 
States  in  the  service  of  the  Confederacy,  be  appointed  by 
the  Confederate  Executive  and  be  dependent  upon  hfm  for 
their  commissions,  they  might  be  supposed  to  be  more 
willing  instruments  in  his  hands,  to  execute  bis  ambitious 
designs,  in  case  of  attempted  encroachment. 

When,  therefore,  the  different  delegations  of  power  are 
construed  together,  the  whole  system  is  harmonious. 
When  Congress  has  declared  war,  and  has  used  all  the 
power  it  possesses  in  raising  armies  by  voluntary  enlist- 
ment, and  providing  a  Navy,  and  still  needs  more  forces  for 
the  purposes  already  mentioned,  it  may  then  provide  for 
calling  forth  the  militia  of  the  several  States,  as  contradis- 
tinguished from  its  nnnies  and  Navij;  and  here,  for  the  first 
time,  the  States  as  such,  have  a  voice  in  the  mattef ;  as 
Consrress  cannot  call  forth  the  militia  w^ithout  civinar  the 
states  the  appointment  of  the  officers,  which  gives  them  a 
qualified  power  over  the  troops  in  the  service  of  the'  Con- 
federacy, and  an  opportunity  to  be  heard,  as  States',  if  the 
delegated  powers  have  been  abused  by  Congress,  or  the 
military  force  is  likely  to  be  used  for  the  subversion  of 
their  sovereignty. 

As  the  residuum  of  powers  not  delegated,  is  reserved  by 
the  States,  they  may,  when  requisitions  are  made  upon 
them  for  troops  ^by  the  Confederacy,  or  when  necessary  fot 
their  own  protection  or  the  execution  of  their  own  laws, 
call  forth  the  militia  by  draft  or  by  accepting  volunteers. 

The  advocates  of  conscription  by  Congress,  have  at- 
tempted to  sustain  the  doctrine  by  drawing  technical  dis- 
tinctions between  the  militia  of  the  States,  and  all  the  arms- 
bearing  people  of  the  States,  of  whom  the  militia  is  com- 
posed. In  other  words,  they  attempt  to  draw  a  distinction 
between  a  company  of  militia   of  one   hundred  men  in  a 


11 

district,  and  the  one  hundred  men  of  whom  the  company 
is  composed.  And  while  it  is  admitted  that  Congress  can- 
not call  forth  the  company  by  conscription  but  must  take 
the  company  with  its  officers,  it  is  contended  that  Congress 
may  call  forth,  not  the  company,  but  the  one  hundred  men 
who  compose  the  company,  by  conscription  ;  and  by  this 
evasion,  get  rid  of  the  State  officers  and  appoint  its  own 
officers.  This  mode  of  enlarging  the  powers  of  Congress 
and  evading  the  constitutional  rights  of  the  States,  by 
unsubstantial  technicalities,  would  seem  to  be  entitled  to 
respect,  only,  on  account  of  the  distinction  of  the  names 
of  its  authors,  and  not  on  account  of  its  logical  truth,  or 
the  soundness  of  the  reasoning  by  which  it  is  attempted  to 
be  maintained. 

If  Congress  may  get  rid  of  the  militia  organizations  of 
the  States,  at  any  time,  by  disbanding  them,  and  compell- 
ing all  the  officers  and  men  of  whom  they  are  composed, 
to  enter  its  armies  as  conscripts,  under  officers  appointed 
by  the  President,  the  provision  in  the  Constitution  which 
reserves  to  the  States  the  appointment  of  the  officers,  to 
command  their  militia,  when  employed  in  the  service  of 
the  Confederacy,  is  a  mere  nullity  whenever  Congi^ss 
chooses  to  enact  that  it  shall  be  a  nullity. 

Again,  if  Congress  has  power  to  raise  its  armies  by  con- 
scription, it  has  the  power  to  discriminate  and  say  whom  it 
will  first  call.  If  it  may  compel  all  between  IS  and  35 
years  of  age,  by  conscription  to  enter  its  armies,  it  has  the 
same  right  to  extend  the  act,  as  it  has  lately  done,  from 
35  to  45  ;  and  if  it  has  this  power,  it  has  the  power  to 
take  all  between  16  and  GO.  The  same  power  of  discrimi- 
nation authorizes  it  to  limit  its  operations,  and  take  only 
those  between  25  and  30,  or  to  take  any  particular  class  of 
individuals  it  may  designate.  And  it  must  be  borne  in 
mind  that  the  power  to  raise  armies,  is  as  unli^nited  in 
Congress,  in  times  of  the  most  profound  peace,  as  it  is  in 
the  midst  of  the  most  devnstating  war.  If  Congress  pos- 
sesses the  power  to  raise  armies  by  conscriptioa,  it  toll«w8 
that  it  may  disband  the  State  Governments  whenever  it 
chooses  to  consider  them  an  evil,  as  it  may  compel  every 
Executive  in  every  State  in  the  Confederacy,  every  mem- 
ber of  the  Legislature  of  every  State,  every  Judge  of  every 
court  in  every  State,  every  militia  office^',  and  every  other 
State  officer,  to  enter  the  .-irmies  of  the  Confederacy  in 
times  of  peace  or  war,  as  privates  under  officers  appointed 
by  the  President ;  and  may  provide  that  the  armies  shall 
be  recruited  by  other  State  officers  as  fast  as  they  are  ap- 
pointed by  the  States.  Admit  the  power  of  conscription 
claimed  ibr  Congress  by  its  advocates,  and  there  is  no 
escape  from  the  position  that  Congress  possesses  this  power 
over  the  States. 


12 

It  may  be  said,  however,  that  the  case  supposed  is  an 
extreme  one,  and  that  while  Congress  may  possess  the 
power  to  destroy  the  State  governments,  it  would  never 
exercise  it.  If  it  possesses  the  ppwer,  its  exercise  depends 
upon  the  will  of  Congress,  which  might  be  influenced  by 
ambition,  interest  or  caprice.  Admit  the  power,  and  I 
exercise  the  functions  of  the  Executive  office  of  this  State, 
you  hold  your  scats  as  members  of  the  General  Assembly, 
and  our  Judges  perform  their  judicial  duties,  by  the  gra^e 
and  .special  fator  of  Congress,  and  not  as  matter  of  right  by 
virtue  of  the  inherent  sovereignty  of  a  great  State,  whose 
people,  in  the  manner  provided  by  the  Constitution,  have 
invested  us  for  the  constitutional  period,  with  the  right  to 
exercise  these  functions. 

For  my  views  upon  this  question  somewhat  more  in  de- 
tail, and  for  the  strongest  reasons  which  can  be  given  on 
the  other  side  to  sustain  this  extraordinary  pretension  of 
power  in  Congress,  I  beg  leave  to  refer  you  to  the  corre- 
spondence between  President  Davis  and  myself,  upon  this 
question ;  a  copy  of  which  is  herewith  transmitted  to  each 
branch  of  the  General  Assembly. 

In  my  letters  to  the  President,  will  also  be  found  the 
reasons  which  induced  me  to  resist  the  execution  of  the 
conscription  Act  of  16th  April  last,  so  far  as  it  related  to 
the  officers  necessary  to  the  maintenance  of  the  govern- 
ment of  this  State.  It  may  be  proper  that  I  remark,  that 
my  first  letter  to  the  President  upon  this  question,  in 
which  I  notify  him  that  I  will  resist  interference  with  the 
legislative,  executive  or  judicial  departments  of  the  govern- 
ment of  the  State,  though  dated  the  22d  of  April,  as  it 
was  expected  to  go  by  the  mail  of  that  day,  was  prepared 
on  the  previous  day,  which  was  the  day  the  exemption  Act 
was  passed  by  Congress  in  secret  session  ;  of  the  passage  of 
which  I  had  no  knowledge,  nor  had  I  ever  heard  that  such  a 
bill  was  pending  when  the  letter  was  prepared. 

The  question  has  frequently  been  asked,  why  I  did  not 
resist  the  operation  of  the  Act  upon  the  privates  as  well  as 
the  ofhcers  of  the  militia  of  the  State.  But  for  the  ex- 
treme emergency  in  which  the  country  was  at  the  time- 
placed,  by  the  neglect  of  the  Confederate  Government  to 
make  requisition  upon  the  State  for  troops,  to  fill  the 
places  of  the  twelve  months  men  at  an  earlier  day,  and  the 
fact  that  the  conscription  Act  b}^  the  repeal  of  all  other 
acts  under  which  the  President  had  been  authorized  to 
raise  troops,  placed  it  out  of  his  power,  for  the  time,  to 
accept  them  under  the  constitutional  mode,  I  should  have 
had  no  hesitation  in  taking  this  course.  But  having  enter- 
ed ray  protest  against  the  constitutionality  of  the  Act,  and 
Congress  having  repealed  all  other  acts  for  raising  troops, 
I  thought  it  best  on  account  of  the  great  public  peril,  to 


13 

throw  the  least  possible  obstructions,  consistent  with  the 
maintenance  of  the  government  of  the  State,  in  the  way  of 
the  Confederate  Government  in  its  preparations  for  our 
defense.  I,  therefore,  at  the  expense  of  public  censure 
which  I  saw  I  must  incur  by  making  the  distinction  be- 
tween officers  and  privates,  determined  to  content  myself 
till  the  meeting  of  the  General  Assembly,  with  resistance 
to  the  execution  of  the  act,  only  to  the  extent  necessary  to 
protect  the  State  government  against  dissolution,  and  her 
people  against  the  massacre  and  hoiTors,  which  might  have 
attended  negro  insurrections  in  particular  localities,  had 
the  militia  been  disbanded,  by  compelling  the  militia  offi- 
cers to  leave  the  State,  which  would  have  left  no  legal 
vacancies  that  could  have  been  tilled  by  the  Executive. 

While  the  first  consciiption  act  made  a  heavv  draft  upon 
the  militia  of  the  State,  it  left  all  between  thirtv-live  and 
forty-iive,  subject  to  the  command  of  her  constituted  au- 
thorities, in  case  of  emergency;  and  with  these  and  her 
officers,  she  still  retained  a  military  onronizntion.  I  did  not, 
at  that  time,  anticipate  an  extension  of  the  act,  which 
would  embrace  the  wliole  militia  of  the  State,  before  your 
meeting.  The  late  act  of  Congress  extends  the  conscrip- 
tion act  to  embrace  all  between  thirty-five  and  forty-five  ; 
and,  if  executed,  disbands  and  dadroys  all  military  organiza- 
tion in  the  State.  Not  onl}^  so,  but  it  denies  to  those  be- 
tween thirty-five  and  forty-iive,  the  right  guaranteed  by 
the  Constitution  of  the  Confederacy  and  laws  of  this  State, 
to  every  Georgian  to  elect  the  officers  by  whom  he  is  to  be 
commanded  while  in  Confederate  service,  and  have  them 
commissioned  by  the  proper  authority  in  his  own  State. 
This  privilege  has  been  allowed  to  other  troops  when 
called  to  the  field.  Even  those  embraced  iu  the  first  con- 
sctiption  act,  were  allowed  thirty  day^  to  volunteer  and 
select  their  own  officers  from  among  those  who,  at  the  time 
the  act  was  passed,  had  commissions  from  the  Secretary  of 
War  to  raise  Ivegiments.  But  even  this  limited  privilege, 
which  fell  far  short  of  the  full  measure  of  their  constitu- 
tional rights,  is  denied  those  now  called  for ;  and  they  are 
to  be  compelled  to  enter  organizations  in  the  choice  of 
whose  officers  they  have  had  no  part,  till  all  the  old  organ- 
izations, with  most  of  their  officers  appointed  by  the  Pres- 
ident, arc  filled  to  their  maximum  number.  This  act,  there- 
fore, not  only  does  gross  injustice  to  the  class  of  our  fellow- 
citizens  now  called  to  the  field,  and  denies  them  the  exer- 
cise of  sacred  constitutional  rights  which  other  citizens 
when  they  entered  the  service  were  permitted  to  enjoy, 
but,  if  executed,  it  takes  the  Major  Generals  and  all  otlier 
militia  officers  of  the  State,  by  force,  and  puts  them  under 
the  command  of  third  Lieutenants  appointed  by  the  Presi- 
dent, and  leaves  the  State  without  a  military  otganization 


14 

to  execute  her  laws,  repel  invasion,  protect  her  public 
property,  or  suppress  servile  insurrection  which  the  enemy 
now  threatens  to  incite  for  the  indiscriminate  massacre  of 
our  wives  and  our  children. 

We  entered  into  this  revolution  in  defense  of  the  rights 
and  sovereignty  of  the  States,  and  sundered  our  connection 
with  the  old  Government,  because  tState  rights  were  inva- 
ded and  State  sovereignty  denied.  The  conscription  act, 
at  one  fell  swoop,  strii^es  down  the  sovereignty  of  the 
States,  tramples  upon  the  constitutional  rights  and  personal 
liberty  of  the  citizen,  and  arms  the  President  with  imperial 
powers  under  which  his  subaltern  in  this  State  has  already 
published  his  orders  to  drag  citizens  of  Georgia,  who  are 
not  in  militar}''  service,  from  their  homes,  "in  chains,"  for 
disobedience  to  his  behests ;  while  invalids  unlit  for  duty 
have  too  often  been  forced  into  camp  and  victimized  by 
exposure  which  they  were  unable  to  endure.  This  action 
of  the  Government  not  only  violates  the  most  sacred  con- 
stitutional rights  of  the  citizen,  but  tends  to  crush  out  the 
spirit  of  freedom  and  resistance  to  tyranny  which  was 
bequeathed  to  us  by  our  ancestors  of  the  Revolution  of 
1776.  When  the  first  conscription  act  was  passed  we  had 
just  gone  through  a  series  of  reverses  which  saddened  the 
hearts  of  our  people,  and  the  public  mind  acquiesced  in  the 
usurpation  on  account  of  the  supposed  necessity.  The 
Government,  presuming  upon  the  advantage  gained  by  the 
precedent  with  the  acquiescence,  fastens  upon  the  country 
a  second  conscription  act  which  not  only  detaches  part 
from  the  State  militia,  but  disbands  the  whole.  No  plea 
of  necessity  can  be  set  up  for  this  last  act.  Instead  of 
reverses,  all  was  success  at  the  time  of  its  passage.  Our 
glorious  armies  had  driven  the  enemy,  at  the  point  of  the 
bayonet,  from  every  battle  field,  during  the  most  brilliant 
summer  and  fallcarapaigns  to  be  found  upon  the  pages 
of  history.  These  successes  had  been  achieved  by  men 
who  entered  the  service  as  volunteers,  and  were  not  dragged 
from  their  homes  as  conscripts.  The  term  of  service  of 
the  troops  was  not  about  to  expire  at  the  time  of  the  pass- 
age of  the  last  conscription  act,  for  they  were  then,  every 
one,  in  for  three  years  or  the  war.  The  additional  number 
needed  to  reinforce  the  armies,  if  we  may  judge  from  the 
past,  could  be  furnished  by  the  States  under  requisitions, 
in  half  the  time,  and  with  much  less  than  half  the  expense 
which  it  will  cost  the  President  to  get  them  into  service  ae 
conscripts. 

Under  these  circumstances,  solemnly  impressed  with  a 
sense  of  the  injustice  about  to  be  done  to  a  large  class  of 
our  fellow  citizens,  under  an  act  which,  in  my  opinion, 
plainly  violates  the  Constitution  of  the  Confederacy,  and 
strikes  down  the  sovereignty  of  the  States,  I  felt  that  I 


15 

should  justly  forfeit  tlie  confidence  reposed  in  me  by  a 
people  who,  ever  jealous  of  their  rights,  had  opposed  stern 
resistance  to  Federal  encroachments,  under  my  predeces- 
sors, Jackson,  Troup  and  Gilmer,  were  I  to  permit  the 
injustice,  and  allow  the  Government  of  the  State  to  be  vir- 
tually disbanded,  and  the  right  arm  of  her  power  severed 
from  her,  without  first  submitting  the  question  of  the  sur- 
render  to  the  representatives  of  the  people.  1  therefore 
informed  the  President  of  the  Confederate  states,  in  a  letter 
dated  the  ISth  ot  last  month — a  cojiy  of  which  is  here- 
to appended — that  I  would  fill  promptly  with  volun- 
teers legally  organized,  a  requisition,  (which  I  invited,)  for 
her  quota  of  the  new  levy  of  troops  needed  by  the  Govern- 
ment, but  that  I  would  not  permit  the  enrollment  of  con- 
scripts under  the  late  conscription  act,  till  you  should  have 
time  to  meet,  deliberate  and  act.  You  have  the  power  to 
adopt  the  proper  measures,  and  give  proper  direction  to  this 
question. 

During  the  approaching  winter,  the  enemy  will  make 
every  efibrt  in  his  power  with  large  fleets  and  armies,  to 
take  our  seaport  city,  over-run  a  large  portion  of  our  State, 
plunder  our  people  and  carry  oft'  our  slaves,  or  induce  them 
to  murder  the  innocent  and  helpless  portion  of  our  popu- 
lation. At  so  critical  a  moment,  the  portion  of  our  mili- 
tia, who  remain  in  the  State,  should  be  encouraged  to  vol- 
unteer and  form  themselves  into  efficient  organizations,  and 
should  be  kept  within  the  limits  of  the  State  to  strike  for 
their  wives  and  their  children,  their  homes  and  their  alturs. 
If  all  our  population  able  to  bear  arms  are  to  be  forced  by 
Conscription  to  leave  the  State  in  the  greatest  crisis  of  the 
war,  to  protect  more  favored  points,  and  our  own  cities  are 
to  be  left  an  easy  prey  to  the  en^my,  and  our  homes  to  bo 
plundered  by  his  marauding  bands  without  resistance,  1 
will  not  be  privy  to  the  deed.  You  are  the  representatives 
of  the  people,  and  must  make  the  decision.  I  therefore 
conjure  you  to  stand  by  the  rights  and  the  honor  of  the 
State,  and  proVide  for  the  protection  of  the  property,  tho 
liberties  and  the  lives  of  -fifel;  people. 

Hon.  Thomas  W.  Thomas,  a  judicial  officer  of  the  State 
of  great  ability  and  integrity,  in  a  case  brought  regularly 
before  home  in  his  judicial  capacity,  has  pronounced  the 
Conscription  Act  unconstitutional,  in  an  argument  which 
has  not  been,  and  will  not  be  answered.  Since  the  decis- 
ion was  made,  Congress,  as  the  newspapers  report,  has 
passed  an  additional  act,  authorizing  the  President 
to  suspend  the  privileges  of  the  writ  of  Jiaheas  corpus^ 
in  all  cases  of  arrest  made  under  the  authority  of  the 
Government,  which  was  doubtless  intended  to  deny 
to  the  Judiciary  the  exercise  of  its  Constitutionab  func- 
tions, in    this  very  case,  and  which  places  the  liberty  of 


16 

every  citizen  of  the  Confederacy  at  the  mercy  of  the 
President,  who  may  imprison  any  citizen  under  his  order 
without  legal  warrant  or  authority,  and  no  court  dare  in- 
terfere to  liberate  the  captive  when  the  imprisonment  is  il- 
legal. I  now  submit  the  question  for  the  consideration  and 
decision  of  the  Representatives  of  the  people  of  the  State, 
whether  the  Constitutional  rights  of  her  citizens  shall  be 
respected,  and  her ,  sovereignty  maintained,  or  whether  the 
citizen  shall  be  told  that  he  has  no  rights,  and  his  State  no 
sovereignty. 

The  (piestion  is  not  whether  Georgia  shall  furnish  her 
just  quota  of  men  and  means  for  the  common  defence. 
This  she  has  more  than  done  to  the  present  time,  and  this 
she  is  even  ready  to  do,  so  long  as  she  has  a  man  or  a  dol- 
lar at  her  command.  But  it  is,  shall  she  be  permitted  to 
furnish  troops  as  volunteers,  organized  m  accordance  with 
her  reserved  rights,  or  shall  her  volunteers  be  rejected  and 
her  citizens  be  dragged  to  the  field  as  Conscripts  in  viola- 
tion of  their  rights  and  her  sovereignty?  Shall  the  pom- 
pous pretensions  of  imperial  power,  made  by  a  government" 
constituted  by  the  States  as  their  common  agent,  be  acqui- 
esced in,  or  shall  the  government  be  compelled  to  return  to 
the  exercise  of  the  powers  delegated  to  it  by  the  Constitu- 
tion ? 

I  am  aware  that  it  has  been  said  by  the  advocates  of  con- 
scription, that  it  is  no  time  now  to  correct  errors.  If  so,  it 
follows  that  there  is  no  responsibility  for,  and  no  restraint 
upon  their  commission.  Again,  it  is  said  we  should  first 
decide  whether  we  are  to  "have  States,"  before  we  under- 
take to  define  the  rights  of  the  States.  We  had  States 
when  we  entered  into  this  revolution.  We  had  States  be- 
fore the  passage  of  the  Conscription  Acts.  We  still  have 
States,  but  if  Conscription  is  to  be  executed  to  the  extent  of 
the  power  claimed  for  Congress  by  its  advocates,  we  cease 
to  have  States,  or  to  have  constitutional  liberty  or  personal 
rights.  The  solemn  question  now  presented  for  your  con- 
sideration is,  shall  we  continue  to  hare  Slates,  or  shall  we  in 
lieu  thereof  have  a  consolidated  military  despotism  ? 

MARTIAL    LAW     AND    HABEAS    CORPUS. 

We  were  recently  informed  by  the  newspapers,  that  a 
military  commander  holding  a  commission  under  the  gov- 
ernment of  the  Confederate  States,  had  issued  an  order  de- 
claring the  city  of  Atlanta  in  this  State,  to  be'under  martial  law, 
and  had  appointed  a  Governor  and  his  aids  to  assume  the  gov- 
ernment of  the  city.  At  the  time  this  order  was  published, 
the  head  quarters  of  th^  General  by  whom  it  was  passed 
and  most  of  his  command,  were,  I  believe,  in  another  State, 
over  130  miles  from  the  city  of  Atlanta.  The  order  was 
issued  without  any  conference  with  the  Executive  of  this 
State  upon  the  subject,  and  the  Governor  appointed  by  the 


17 

General,  assumed  the  government  and  control  of  the  city. 
As  you  were  soon  to  assemble,  I  thought  it  best  to  avoid 
all  conflict  upon  this  question  till  the  facts  should  be  placed 
before  you,  and  your  pleasure,  as  tlie  representatives  of  the 
sovereign  people  of  this  State,  should  be  known  in  the 
premises.  I  consider  this  and  all  like  proceedings,  on  the 
part  of  Confederate  officers  not  only  high  handed  usurpa- 
tions, dejiending  for  their  authority  upon  militar}''  power 
without  the  shadow  of  constitutional  right,  but  dangerous 
precedents,  which  if  acquiesced  in  by  the  people  of  this 
State,  tend  to  the  subversion  of  the  government  and  sover- 
eignty of  the  State,  and  of  the  individual  rights  of  the  citi- 
zen. This  order  of  the  commanding  General  was,  after 
some  delay,  annulled  by  the  War  Department. 

The  5th  and  6th  .paragraphs  of  the  -ith  Article  of  the 
Constitution  of  the  Confederate  States,  are  in  these  words  : 

5  "The  enumeration  in  thei  Constitution  of  certain  rights, 
"shall  not  be  construed  f o  deny  or  disparage  others  retained 
"by  the  people  of  the  several  iStates. 

G  "The  powers  not  delegated  to  the  Confederate  States 
"by  the  Constitution  nor  prohibited  by  it  to  the  States, 
"are  reserved  to  the  States  respectively,  or  to  the  people 
thereof." 

Under  these  provisions  of  the  Constitution,  no  Depart- 
ment nor  officer  of  the  Confederate  government,  has  the 
right  to  assume  or  exercise  any  power  not  delegated  by  the 
States,  "each  State  acting  in  its  sovereign  and  independent 
character."'  It  follows,  therefore,  that  no  Department  nor 
officer  of  the  Confederate  Government,  has  the  right  to  sus- 
pend the  writ  of  hahcfis  corpus,  which  is  the  highest  safe- 
guard of  personal  liberty,  nor  to  exercise  the  high  preroga- 
tive of  sovereignty,  by  the  representative  of  which  alone, 
martial  lair  may  be  declared,  unless  the  grant  of  power  from 
the  States  to  do  so  ca\\  be  found  in  the  Constitution.  That 
instrument  declares  ; 

"The  privilege  of  the  writ  of  habeas  corpus  shal!  not  be 
"suspended,  unless  when,  in  eases  of  rebellion  or  invasion, 
"the  public  safety  may  require  it." 

This  clause  contains  a  grant,  by  plain  implication,  of  the 
I  power  to  suspend  the  writ  of  hnbms  cor^m  when  the  public 
safety  requires  it,  in  the  two  cases  of  rebcJflon  or  invasion^ 
btit  in  no  other  case ;  and  no  further  in  these  cases  than  may 
be  required  by  the  public  safety.  But  we  look  to  the  Con- 
stitution in  vain  for  any  grant  of  power  by  the  States  to  the 
Confederate  government  or  any  Department  or  officer  there- 
of, to  declare  martial  lav  and  suspend  the  laws  and  civil 
process  of  the  States,  (other  than  the  writ  of  habeas  corpus,) 
in  any  case  or  nnder  any  emergency  whatever.  If  a  Cen- 
federate  officer  may,  by  a  declaration  of  martial  law,  set 
aside  the  laws  and  civil  process  of  a  State  in  a  particular 


18 

city  or  other  locality,  at  his  pleasure,  h6  may  extend  his 
order  to  embrace  the  whole  territory  of  the  State,  and  set 
aside  the  government  of  the  State,  and  may  himself  enact 
the  laws  and  appoint  the  Governors  by  which  the  people  of 
the  State  shall  in  future  be  controlled.  Not  only  so,  but  if  the 
precedent  in  this  case  is  to  be  tolerated,  this  may  be  done 
by  any  military  commander  in  any  part  of  the  Confederacy, 
who  chooses  to  send  his  edict  to  this  State,  and  appoint  his 
Executive  officers  to  carry  it  into  eff'ect. 

IMPRESSMENT    OF  PRIVATE   PROPERTY. 

It  is  also  my  duty  to  call  your  attention  to  another  matter 
considered  by  the  people  of  this  State  a  subject  of  grievance. 
The  power  is  now  claimed  by  almost  every  military  com- 
mander, to  impress  the  private  property  of  the  citizen  at 
his  pleasure,  without  any  express  order  from  the  Secretary 
of  War  for  that  purpose  ;  and  in  many  cases,  without  the 
payment  of  any  compensation — the  officer,  who  is  in  some 
cases,  only  a  Captain  or  Lieutenant,  giving  a  certificate  that 
the  property  has  been  taken  for  public  use  ;  which  seizure, 
after  long  delay,  may,  or  may  not,  be  recognized  by  the  gov- 
ernment ;  as  it  may  determine  that  the  officer  had,  or  had 
not,  competent  authority  to  make  it. 

I  am  aware  that  the  Constitution  confers  the  power  upon 
the  Confederate  Government,  to  take  private  property  for 
public  use,  paying  therefor  just  compensation  ;  and  I  have 
no  doubt,  that  every  true  and  loyal  citizen,  would  cheerfully 
acquiesce  in  the  exercise  of  this  power,  by  the  properly  au- 
thorized and  responsible  agents  of  the  government,  at  all 
times  when  the  public  necessities  might  require  it.  But  I 
deny  that  every  subaltern  in  uniform  who  passes  through 
the  country,  has  the  right  to  appropriate  what  he  pleases  of 
the  property  of  the  citizen  without  being  able  to  show  the 
authority  of  the  Government  for  the  exercise  of  this  high 
prerogative.  As  our  people  are  not  aware  of  their 
proper  remedies  for  the  redress  of  the  grievances  hereinbe- 
fore mentioned,  I  respectfully  suggest,  that  the  General 
Assembly,  after  consideration  of  these  questions,  declare  by 
Resolution  or  otherwise,  their  opinion  as  to  the  power  of 
the  Confederate  Government  and  its  officers,  in  these  particu- 
lars. I  also  respectfully  request  that  the  General  Assembly 
declare  the  extent  to  which  the  Executive  of  this  State  will 
be  sustained  by  the  representatives  of  the  people,  in  pro- 
tecting their  rights,  and  the  integrity  of  the  Government, 
and  sovereignty  of  the  State,  against  the  usurpations  and 
abuses  to  which  I  have  invited  your  attention. 

JOSEPH  E.  BROWN. 


19 

Copy  of  a  Letter  to  President  Davis,  to  which  no  reply  has 
been  received. 

Canton,  Geo.,  Oct.  18th,  1862. 
His  Excellency,  Jefferson  Davis: 

Dear  Sir  : — Tlie  act  of  Congress  passed  at  its  late  session 
extending  the  Conscription  act,  unlike  its  predecessor,  of 
which  it  is  amendatory,  gives  you  power,  in  certain  contin- 
gencies, of  the  happening  of  which  you  must  be  the  judge, 
to  suspend  its  operation,  and  accept  troops  from  the  States 
under  any  of  the  former  acts  upon  that  subject.  By  former 
acts  you  weVe  autliorized  to  accept  troops  from  the  States 
organized  into  companies,  battalions  and  regiments.  The 
Conscription  act  of  10th  April  last  repealed  these  acts,  but 
the  late  act  revives  them  when  you  suspend  it. 

For  the  reasons  then  given,  I  entered  my  protest  against 
the  first  Conscri[)tion  act  on  account  O'f  its  unconstitution- 
ality, and  refused  to  permit  the  enrollment  of  any  State  offi- 
cer, civil  or  militiiry,  who  was  necessary  1o  the  integrity  of 
the  State  government.  But  on  account  of  the  emergencies 
of  the  country,  growing  out  of  the  neglect  of  tiie  Confede- 
rate autliorities  to  call  upon  the  States  for  a  sufficient 
amount  of  additional  force  tosnpply  the  places  of  the  twelve 
months  troops,  and  on  account  of  the  repeal  of  the  former 
laws  upon  that  subject,  having,  for  the  time,  placed  it  out 
of  your  power  to  accept  troops  organized  by  the  States  in 
the  constitutional  mode,  I  interposed  no  active  resistance  to 
the  enrollment  of  persons  in  this  State  between  IS  and  ■^5, 
who  were  not  oflicers  necessary  to  the  maintenance  of  the 
government  of  the  State. 

The  first  conscription  act  took  from  the  State  only  part 
of  her  military  force.  Slie  retained  her  officers  and  all  her 
militia  between -{-5  and  4o.  Iler  military  organization  was 
neither  disbanded  nor  destroyed.  She  had  permitted  a  heavy 
draft  to  be  made  upon  it,,>\'rthout  constitutional  authority, 
rather  than  her  fidelity  to  onr  cause  should  be  questioned, 
or  the  enemy  should  gain  any  advantage  growing  out  ot 
what  her  authorities  might  consider  unwise  councils.  But 
she  still  retained  an  organization,  subject  to  the  command  of 
her  constituted  authorities,  which  she  could  use  for  the  pro- 
tection of  her  public  property,  the  execution  of  her  laws, 
the  repulsion  of  invasion,  or  the  suppression  of  servile  in- 
surrection which  our  insidious  foe  now  proclaims  to  the 
world  that  it  is  his  intention  to  incite,  which  if  done,  may 
result  in  an  indiscriminate  massacre  of  helpless  women  and 
children. 

At  this  critical  period  in  our  public  aflairs,  wheu  it  is 
absolutely  necessary  that  each  State  keep  an  organization  for 
home  protection,  Congress,  with  your  sanction,  has  exten- 


20 

ded  the  conscription  act  to  embrace  all  between  35  and  46 
subject  to  military  dj.ity,  giving  you  the  power  to  suspend 
the  act  as  above  stated.  If  you  refuse  to  exercise  this  power 
and  are  permittedtotake  all  between  35  and  45  as  conscripts, 
you  disband  and  destroy  all  military  organization  in  this  State, 
and  leave  her  people  utterly  powerless  to  protect  their  own 
families,  even  against  their  own  slaves.  Not  only  so,  but 
you  deny  to  those  between  35  and  45  a  privilege  of  electing 
the  officers  to  command  them,  to  which,  under  the  Consti- 
tution of  the  Confederacy  and  the  laws  of  this  State,  they 
are  clearly  entitled,  which  has  been  allowed  to  other  troops 
from  the  State,  and  was  to  a  limited  extent  allowed  even  to 
those  betv^-een  IS  and  35  under  the  act  of  16th  April,  as 
that  act  did  allow  them  thirty  days  within  which  to  volun- 
teer, under  such  officers  as  they  might  select,  who  chanced 
at  the  time  to  have  commissions  from  the  War  Department 
to  raise  regiments. 

If  you  deny  this  rightful  privilege  to  those  between  35 
and  45,  and  refuse  to  accept  them  as  vohmieers  with  officers 
selected  by  them  in  accordance  with  the  laws  of  their  State, 
and  attempt  to  compel  them  to  enter  the  service  as  co7iscript&i 
my  opinion  is,  your  orders  will  only  be  obeyed  by  many 
of  them  when  backed  by  an  armed  force  which  they  have 
no  powder  to  resist. 

The  late  act,  if  I  construe  it  correctly,  does  not  give  those 
between  35  and  45  the  privilege  under  any  circumstances 
of  volunteering  and  forming  themselves  into  regimental  or- 
ganizations, but  compels  them  to  enter  the  present  organ- 
izations as  privates  under  officers  heretofore  selected  by 
others,  until  all  the  present  organizations  are  filled  to  their 
maximum  number. 

This  injustice  can  only  be  avoided  by  the  exercise  of  the 
power  given  you  to  suspend  the  act,  and  calj  upon  the  States 
for  organized  companies,  battalions  and  regiments.  I  think 
the  history  of  the  past  justifies  me  in  saying,  that  the  public 
interest  cannot  suffer  by  the  adoption  of  this  course.  When 
you  made  a  requisition  upon  rae  'in  the  early  part  of  Feb- 
ruary last,  for  twelve  regiments,  I  had  them  all,  witli  a  large 
additional  number,  in  tlie  field  subject  to  your  command 
and  ready  for  service,  in  about  one  month.  ,  It  has  now  been 
over  six  months  since  the  passage  of  the  first  conscription  act, 
and  your  officers  during  that  time  have  not  probably  enrolled 
and  carried  into  service  from  this  State  conscripts,  exceeding 
one-fourth  of  the  number  furnished  by  me  as  volunteers  in 
one  month,  while  the  expense  of  getting  the  conscripts  in- 
to service  has  probably  been  four  times  as  much  as  it  cost 
to  get  four  times  the  number  of  volunteers  into  the  field. 

in  consideration  of  these  facts,  I  trust  you  will  not  hesi- 
tate to  exercise  the  power  given  you  by  the  act  of  Congress, 
and  make  an  early  requisition  (which  I  earnestly  invite)  upon 


SI 

the  Executive  of  this  State,  for  her  just,  quota  of  the  addi- 
tional number  of  troops  necessary  to  be  called  out,  to  meet 
the  hosts  of  the  invader — the  troops  to  be  organized  into 
companies,  battalions  and  regiments,  in  accordance  with  the 
laws  of  this  State. 

The  prompt  and  patriotic  response  made  by  the  people 
of  Georgia  to  every  call  for  volunteers,  justifies  the  reason- 
able expectation  that  I  shall  be  able  to  fill  your  requisition 
in  a  short  time  after  it  is  made,  and  authorizes  me  in  advance 
to  pledge  prompt  compliance.  This  can  be  done,  too,  when 
left  to  the  State  authorities,  in  such  way  as  not  to  disband 
nor  destroy  her  military  organization  at  home,  which  must 
be  kept  in  existence  to  be  used  in  case  of  servile  insurrec- 
tion or  other  pressing  necessity. 

If  you  should  object  to  other  new  arganizations  on  the 
ground  that  they  are  not  efficient,  I  beg  to  invite  your  at- 
tention to  the  conduct  of  tlie  newly  organized  regiments  of 
Georgians,  and  indeed  of  troops  from  all  the  States,  upon  the 
plains  of  Manassas,  in  the  battles  before  Richmond,  upon 
James'  Island  near  Charleston,  at  Shiloh,  at  Ricliraond, 
Kentucky,  and  upon  every  battle  field,  whenever  and  wher- 
ever they  have  met  the  invading  forces.  If  it  is  said  that 
some  of  our  old  regiments  are  almost  decimated,  not  having 
more  than  enough  men  in  a  regiment  to  form  a  single  com- 
pany ;  that  it  is  too  expensive  to  keep  these  small  bands  in 
the  field  as  regin)ents,  and  that  justice  to  the  officers  re- 
quires that  they  be  filled  up  by  conscripts,  I  reply,  that 
injustice  should  never  be  done  to  the  troops,  for  the  pur- 
pose of  saving  a  few  dollars  of  expense  ;  and  tliat  justice  to 
the  men  now  called  into  the  field,  as  imperatively  requires, 
that  they  shall  have  the  privilege  allowed  to  other  troops, 
to  exercise  the  constitutional  right  of  entering  tiie  service 
under  officers  selected  and  appointed  as  directed  bv  the  laws 
of  their  own  State,  as  it  does,  that  officers  in  service  shall 
not  be  deprived  of  their  connnands  when  their  regiments 
are  worn  out  or  destroyed.  , 

Our  officers  have  usually  exposed  themselves  in  the  van 
of  the  fight,  and  shared  the  fate  of  their  men.  Hence  but 
few  of  the  original  experienced  oftlcers  who  went  to  the 
field  with  our  old  regiments,  which  have  won  so  bright  a 
name  in  history,  now  survive,  but  their  places  have  been 
filled  by  others  appointed  in  mo«t  cases  by  the  f'resident. 
They  have,  theretore,  no  just  cause  to  claim  that  the  riglit 
of  election  which  belongs  to  every  Georgian,  shall  be  de- 
nied to  all  who  are  hereafter  to  enter  the  service,  for  the 
purpose  of  sustaining  tiiem  in  the  offices  which  they  now  fill. 

If  it  becomes  necessary  to  disband  any  regiment  on  ac- 
count of  its  small  numbers,  let  every  officer  and  private  be 
left  perfectly  free  to  unite  with  such  new  volunteer  associ- 
ation as  he  thinks  proper,  and  in  the  organization  and  selec- 


22 

tion  of  officers,  it  is  but  reasonable  to  suppose  that  modest 
merit  and  experience  will  not  be  overlooked. 

The  late  act,  of  Congress,  if  executed  in  this  State,  not 
only  does  gross  injustice  to  a  large  class  of  her  citizens,  ut- 
terly destroys  all  State  military  organization,  and  en- 
croaches upon  the  reserved  rights  of  the  State,  but  strikes 
dovv^n  her  sovereignty  at  a  single  blow,  and  tears  from  her  the 
right  arm  of  strength,  by  which  she  alone  can  maintain  her 
existence,  and  protect  those  most  dear  to  her,  and  most  de- 
pendent upon  her.  The  representatives  of  the  people  will 
meet  in  General  Assembly  on  the  6th  day  of  next  month, 
and  I  feel  that  I  should  be  recreant  to  the  high  trust  reposed 
in  me,  were  I  to  permit  the  virtual  destruction  of  the  Gov- 
ernment of  the  State,  before  they  shall  have  had  time  to 
convene,  deliberate  and  act. 

Referring,  in  connection  with  the  considerations  above 
mentioned,  to  our  former  correspondence,  for  the  reasons 
which  satisfy  my  mind  be3'^ond  doubt,  of  the  unconstitution- 
ality of  the  conscription  acts  ;  and  to  the  fact  that  a  Judge 
in  this  State,  of  great  ability,  in  a  case  regularly  brought 
before  him  in  his  judicial  capacity,  has  pronounced  the  law 
unconstitutional  ;  and  to  the  further  fact  that  Congress  has 
lately  passed  an  additional  act  authorizing  you  to  suspend 
the  privilege  of  the  writ  of  Habeas  Corpus,  doubtless  with 
a  view  of  denying  to  the  judiciary  in  this  very  case,  the 
exercise  of  its  constitutional  functions,  for  the  protection 
of  personal  liberty,  I  can  no  longer  avoid  the  responsibility 
of  discharging  a  duty  which  I  owe  to  theppople  of  this 
State,  by  informing  you,  that  I  cannot  permit  the  enroll- 
ment of  conscripts,  under  the  late  act  of  Congress  entitled 
"An  act  to  amend  the  act  further  to  provide  for  the  com- 
mon defense,"  until  the  General  Assembly  of  this  State 
shall  have  convened  and  taken  action  in  the  premises. 

The  plea  of  necessity  set  up  for  conscription  last  Spring, 
when  1  withheld  active  resistance  to  a  heavy  draft  upon 
the  military  organization  of  the  State  under  the  hrst  con- 
scription act,  cannot  be  pleaded,  after  the  brilliant  suc- 
cesses of  our  gallant  armies  during  the  summer  and  fall 
campaign,  whicli  have  been  achieved  by  troops  who  en- 
tered the  service,  not  as  conscripts  but  as  volunteers.  If 
more  troops  are  needed  to  nioet  coming  emergencies,  call 
upon  the  State,  and  you  shall  have  them  as  volunteers,  much 
more  rapidly  than  ydur  enrolling  officers  can  drag  con- 
scripts, like  slavee:  "in  chains,"  to  camps  of  instruction. 
And  who  that  is  not  blinded  by  prejudice  or  ambition, 
can  doubt,  that  thev  will  be  much  more  effisctive  as  volun- 
teers than  as  conscripts 7  The  volunteer  enters  the  service 
of  his  own  free  will.  He  regards  the  war  as  much  his  own 
as  the  Government's  war ;  a;nd  Is  Teady,  if  need  be,  to  offer 
his  life  a  willing  sacrifice  upon  his  country's  altar.     Hence 


23 

it  is  that  our  vohirdccr  armies  have  been  invincible,  when 
contending  against  vastly  superior  numbers  with  every 
advantage  which  the  best  equipments  and  supplies  can 
afford.  Not  so  with  the  conscript.  He  may  be  as  ready 
as  any  citizen  of  the  State  to  volunteer,  if  permitted  to 
enjoy  the  constitutional  rights  which  have  been  allowed  to 
others,  in  the  choice  of  his  officers  and  associates.  But  if 
these  are  denied  him,  and  he  is  seized  like  a  serf,  and  hur- 
ried into  an  association  repulsive  to  his  feelings,  and  placed 
under  officers  in  whom  he  has  no  confidence,  he  then  leels 
that  this  is  the  Government's  war,  not  his;  that  he  is  the 
mere  instrument  of  arbitrary  power,  and  that  he  is  no 
longer  laboring  to  establish  constitutional  liberty,  but  to 
build  up  a  military  despotism  for  its  ultimate  but  certain 
overthrow.  Georgians  will  never  rekise  to  volunteer,  as 
long  as  there  is  an  enemy  upon  our  soil,  and  a  call  for  their 
services.  But  if  I  mistake  not  the  signs  of  the  times,  they 
will  require  the  Government  to  respect  their  plain  consti- 
tutional rights.  4< 

Surely  no  just  reasoti  exists  why  yoli  should  refuse  to 
accept  volunttjers  when  tendered,  and  insist  on  replenishing 
your  armies  by  conscription  and  coercion  of  freemen. 

The  question,  then,  is  not  whether  you  shall  have  Geor- 
gia's quota  of  troops,  for  they  are  freely  offered — tendered 
in  advance — but  it  is  whether  you  shall  accept  them  when 
tendered  as  volunteers,  organized  as  the  Constitution  and 
laws  direct,  or  shall,  when  the  decision  is  left  with  you, 
insist  on  rejecting  volunteers,  and  dragging  the  free  citizens 
of  this  State  into  your  armies  as  conscripts.  No  act  of  the 
Government  of  the  United  States,  prior  to  the  secession  of 
Georgia,  struck  a  blow  at  constitutional  liberty,  so  fell,  as 
has  been  stricken  by  the  conscription  acts.  The  people  of 
this  State  had  ample  cause,  however,  to  justify  their  sepa- 
ration from  the  old  Government.  Itiey  acted  c«olly  and 
deliberately,  in  view  of  all  the  responsibilities ;  and  thev 
stand  ready  to-day  to  sustain  their  action,  at  all  hazards  ; 
and  to  resist  submission  to  the  Lincoln  Government,  and 
the  reconstruction  of  the  old  Union,  to  the  expenditure  of 
their  last  dollar,  and  the  sacrifice  ^of  their  last  life.  Having 
entered  into  the  revolution  freemen,  they  intend  to  emerge 
from  it  freemen.  And  if  I  mistake  not  the  character  of  the 
sons,  judged  by  the  action  of  their  fathers  against  Federal 
encroachments,  under  Jackson,  Troup  and  Oihiier,  respect- 
ively, as  executive  officers,  they  will  refuse  to  yield  their 
sovereignty  to  usurpation,  and  will  require  the  Govern- 
ment, which  is  the  common  agent  of  all  the  States,  to 
move  within  the  sphere  assigned  it  by  the  Constitution. 
Verv  respectfully,  your  obedient  servant, 

JOSEPH  E.  BROWN. 


